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Viewing cable 07LIMA2019, PERU: IPR ENFORCEMENT TRAINING PROPOSAL

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Reference ID Created Released Classification Origin
07LIMA2019 2007-06-08 22:10 2011-08-25 00:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Lima
VZCZCXYZ0029
RR RUEHWEB

DE RUEHPE #2019/01 1592210
ZNR UUUUU ZZH
R 082210Z JUN 07
FM AMEMBASSY LIMA
TO RUEHC/SECSTATE WASHDC 5773
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEHRI/AMCONSUL RIO DE JANEIRO 0326
RUEHBS/USEU BRUSSELS
UNCLAS LIMA 002019 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
DEPT FOR WHA/AND, INL/RM, EB/TPP/IPE 
COMMERCE FOR 4331/MAC/WH/MCAMERON 
USPTO FOR CBERDUT 
USTR FOR BHARMAN 
AMCONSUL RIO FOR DMAZURKEVICH 
USEU FOR DCM/MCKINLEY 
 
E.O. 12958: N/A 
TAGS: KIPR ETRD ECON PE
SUBJECT: PERU: IPR ENFORCEMENT TRAINING PROPOSAL 
 
REF: A. STATE 55928 
 
B. LIMA 523 
 
Summary 
------- 
 
1. (U) The Peruvian Government has shown a commitment to improving 
IPR enforcement by establishing courts and prosecutorial offices 
focused on IP issues in December 2006 and January 2007, and by 
committing to the provisions of the U.S.-Peru Trade Promotion 
Agreement's (PTPA) IPR chapter.  These new IP judges and prosecutors 
have the potential to remedy one of the biggest IPR enforcement 
problems in Peru -- lack of judicial convictions and deterrent 
sentences.  These judges have inherited more than 1,000 pending IP 
cases, but the vast majority of these officials have only very basic 
knowledge and no experience in IPR issues. 
 
2. (U) We hope to use this funding opportunity to train judges, 
prosecutors and other IP enforcement officials so that they have the 
skills necessary to do their jobs and thus improve the IP situation 
in Peru.  The training is also necessary to ensure the judges and 
prosecutors understand Peru's new commitments under the PTPA.  As 
these courts and prosecutorial offices are already up and running, 
the training is needed as soon as possible.  Embassy Lima requests a 
total of $41,000 of 2007 INL IPR Enforcement Training Funds for two 
programs:  in-country judicial enforcement training for IP judges 
and prosecutors ($20,000), and funding to cover the plane tickets 
for 20 Peruvian officials participating in USPTO Global Intellectual 
Property Academy (GIPA) training in Alexandria over a one-year 
period ($21,000).  Detailed project descriptions with evaluation 
metrics as requested by Ref A follow.  End Summary. 
 
Background 
---------- 
 
3. (U) Piracy and counterfeit rates in Peru remain unacceptably high 
and Peru has been on USTR's Special 301 Watch List since 2001 (see 
Ref B for details on IPR in Peru).  According to International 
Intellectual Property Alliance (IIPA) 2006 estimates, 98% of sound 
recordings and 70% of business software in Peru were pirated, 
representing a loss of $80.5 million.  According to the Business 
Software Alliance (BSA), Peru's 2006 software piracy level was 71%, 
representing losses of $59 million.  The audiovisual industry 
estimated a 75% piracy rate in 2006.  The Pharmaceutical Research 
and Manufacturers of America (PhRMA) estimated that patent and data 
protection damages totaled 23.2% of sales in Peru.  U.S. industry 
representatives agree that Peru's IP laws and regulations are 
generally adequate, but serious improvements are needed in 
enforcement, particularly in terms of prosecutions and deterrent 
sentences. 
 
Proposal 1: Improving IP Prosecutions and Sentencing 
--------------------------------------------- ------- 
 
4. (U) Proposal 1 Description: 
 
The U.S. business community and the USG have for years complained 
about the lack of judicial convictions and deterrent sentences for 
IPR violators in Peru.  A critical shortcoming was the lack of 
specialized IPR courts.  To address this problem, the GOP (for the 
first time ever) assigned IP duties to four national penal courts of 
first instance and one appeals court in December 2006 and January 
2007.  The courts are now up and running, but the vast majority of 
judges and their staff have no previous IPR experience.  Peru also 
now has three prosecutors' offices responsible for IP, and many of 
these prosecutors are also new to IP issues.  All Mission elements, 
as well as the AmCham in Peru and the Peruvian Government's IP 
Office (INDECOPI), agree that our current top IPR priority is to 
train these judges and prosecutors so that they can correctly 
adjudicate IP cases and deter IPR violations. 
 
With USPTO assistance, post has managed to send a few of the judges 
and prosecutors to IPR enforcement training at USPTO in Alexandria. 
However, due to the large number of judges, prosecutors and staff 
who need this training, and the fact that most do not speak English, 
there is a dire need for specific in-country training.  INDECOPI 
recently offered training sessions during one month for the judges 
on the basics of patents, trademarks and copyrights.  The 
judiciary-specific enforcement training we propose would build on 
this basic training. 
 
In order to keep the class size manageable, we propose two 
consecutive, two-day sessions with no more than 30 participants per 
session.  The sessions would each include the following topics: 
 
- effective enforcement/targeting with limited resources, 
- preparing an IP case for prosecution, 
- the importance of evidence, 
- determining proportionate and deterrent sentences, 
- tools to dismantle organized crime networks, 
- enforcement aspects of IPR legislation and WTO commitments, 
- new obligations under the U.S.-Peru Trade Promotion Agreement 
(PTPA), 
- country-specific case studies, and 
- best practices. 
 
To improve attendance, we propose holding the training within the 
building that houses the IP courts (the training offered by INDECOPI 
earlier in 2007 was done there successfully).  A back-up option 
could be the ILEA Training Academy located in Lima.  The five 
proposed USG speakers would come from DOJ (2), USPTO (1), and 
ideally, from the Court of Appeals for the Federal Circuit (1) and 
from a trial-level IPR court (1).  It would be great if these 
officials could include at least one judge and one prosecutor.  The 
AmCham would provide local speakers, such as IP lawyers, to present 
case studies.  If needed, a Peruvian Government official could 
discuss Peru's IP laws and WTO/PTPA commitments.  Because the new IP 
courts are already hearing cases, we would like to provide this 
training at the earliest date possible. 
 
5. (U) Proposal 1 Estimated Budget: 
 
Lodging 5 USG trainers    $158/night x 5 nights x 5  $3,950 
Per Diem 5 USG trainers  $440/person x 5            $2,200 
Airfare DC-Lima-DC        $1,050/person x 5          $5,250 
Miscellaneous fees       $100/person x 5            $  500 
Translation w/Equipment   $1,100/day x 4 days        $4,400 
Printing/Copying                                     $  300 
Buffet Lunch (4 days)                                $2,000 
Coffee breaks (4 days)                               $  900 
Transportation                                       $  500 
 
Total amount requested for Proposal 1:  $20,000 
 
Proposal 2: Peruvian Participation in USPTO Training 
--------------------------------------------- ------- 
 
6. (U) Proposal 2 Description: 
 
Post and Peruvian Government officials involved in protecting IPR 
greatly appreciate the opportunity for Peruvians to participate in 
USPTO Global Intellectual Property Academy (GIPA) training in 
Alexandria and other USG-sponsored training.  Officials that have 
returned from such training have found the information learned and 
contacts made extremely useful.  They have become invaluable 
contacts for the Embassy and the U.S. private sector. 
 
Up until earlier this year, USPTO was able to fully fund the 
participation of two Peruvians per each GIPA course offering.  More 
than 20 Peruvian officials attended these courses between August 
2006 and April 2007.  However, USPTO is no longer able to fund the 
airfare of our participants, although other costs continue to be 
covered.  Unfortunately, the Peruvian Government is operating under 
an austerity budget that does not allow purchase of plane tickets 
for training.  For the most recent courses, we have only been able 
to send a few participants willing to pay for the travel themselves. 
 Under these circumstances, Peruvian participation in USPTO and 
other training will plummet, especially from law enforcement 
officials. 
 
Post has no funding source for these IPR courses, so we request INL 
funding for the plane tickets of 20 Peruvian participants per year 
for USG training at USPTO and elsewhere.  This funding would only be 
used for courses where other travel funding is unavailable. 
 
7. (U) Proposal 2 Estimated Budget: 
 
Airfare DC-Lima-DC        $1,050/person x 20        $21,000 
 
Total amount requested for Proposal 2:  $21,000 
 
Targeted to U.S. Priorities 
--------------------------- 
 
8. (SBU) The inability of the GOP prosecutors and judicial system to 
enforce IPR directly affects U.S. companies working in Peru.  Many 
American pharmaceutical, apparel and motion picture companies have 
requested Embassy advocacy and assistance.  The massive scale of 
piracy and contraband in Peru is only possible through organized 
crime.  For example, the Peruvian Government has established a 
strong link between piracy and money laundering.  Peru's Financial 
Intelligence Unit (FIU) is currently investigating several 
multi-million dollar money-laundering cases with links to piracy, 
including a case entering the judicial phase that involves the 
laundering of over $54.5 million through the sale of pirated optical 
discs.  Most of these discs enter through Iquique, Chile, and the 
FIU suspects that the individuals involved have strong ties to both 
China and the United States.  The FIU also thinks there may be a 
connection to the Tri-Border Area of Argentina, Paraguay and 
Brazil. 
 
9. (U) The Peruvian Congress has ratified the U.S.-Peru Trade 
Promotion Agreement (PTPA), which is currently pending approval by 
the U.S. Congress.  The enhanced IPR protections included in the 
PTPA, coupled with Peru's existing laws and WTO commitments, make 
for a good IPR framework.  The lacking component is adequate 
enforcement, including better prosecutions and the issuing of 
deterrent sentences.  The proposed training of newly-appointed 
judges and prosecutors on the aforementioned topics is necessary to 
improve IPR enforcement and help the Peruvian Government meet its 
PTPA and WTO obligations.  Furthermore, Peru will be hosting the 
Asia-Pacific Economic Cooperation (APEC) forum activities from 
September 2007 through November 2008, including the meeting of the 
leaders of the 21 member economies.  The USG strongly supports 
APEC's IPR activities, and it is in our interest to strengthen the 
host's enforcement capacity. 
 
Strong Support of Host Government and Private Sector 
--------------------------------------------- ------- 
 
10. (U) Peru's IP laws are generally adequate and are being 
strengthened in line with PTPA commitments.  Peru is a member of the 
World Intellectual Property Organization (WIPO), Paris Convention, 
Berne Convention, Rome Convention, Geneva Phonograms Convention, 
Brussels Satellites Convention, Universal Copyright Convention, the 
WIPO Copyright Treaty (WCT), and the WIPO Performances and 
Phonograms Treaty (WPPT).  Most importantly, the Government has 
shown its commitment to improving IPR enforcement by assigning 
national jurisdiction for IP cases to four penal courts of first 
instance and one appeals court, as well as by increasing the number 
of prosecutorial offices dedicated to IP enforcement.  Peru's IP 
agency, INDECOPI, trained these new judges from April-May 2007, and 
has requested USG help in more specialized training specific to 
prosecutorial and judicial enforcement.  Even the judges and 
prosecutors themselves have approached the Embassy to request 
training. 
 
11. (U) The AmCham has a very active IPR Committee with three 
subcommittees (on enforcement, PTPA implementation and increasing 
government and public attention to IP issues).  The AmCham agrees 
that training the new judges and prosecutors is an immediate top 
priority, and has offered to provide speakers for the training. 
 
Addresses Key Gap to Improve IPR Enforcement 
-------------------------------------------- 
 
12. (U) The lack of specialized IP courts was a glaring gap in 
Peru's IPR regime, which the Government has finally begun to fill by 
creating the courts and assigning the judges and prosecutors.  The 
proposed training is needed to give these new judges and prosecutors 
the knowledge and skills necessary to successfully prosecute IP 
cases and issue deterrent sentences that will help to make a dent in 
the high levels of patent, copyright and trademark violations. 
 
Capacity to Make Near-Term, Measurable Success 
--------------------------------------------- - 
 
13. (U) The creation of the IP courts is an unprecedented 
opportunity to improve IPR enforcement.  With virtually all of the 
judges and prosecutors at the beginning of their IPR learning curve, 
this training would without a doubt make a positive difference.  The 
short-term success of the training would be measured by the number 
of IPR cases prepared by prosecutors, the number of cases heard and 
decided by the five courts, and the severity of the resulting fines 
and jail sentences.  The mid-long term success would be measured by 
the impact of improved IP judicial proceedings and deterrent 
sentences on Peru's high piracy and counterfeit rates.  The training 
will also create a network of contacts/relationships for on-going 
communication and further improvements. 
 
Strong Project Oversight and Accountability Measures 
--------------------------------------------- ------- 
 
14. (U) This training has the support of every Embassy section 
involved in IP issues, the Front Office, the AmCham, INDECOPI, and 
the IP courts and prosecutorial offices.  These entities will work 
together to ensure the proposals are implemented successfully and as 
cost-effectively as possible.  The Embassy has experience in 
preparing large training events, including several IPR events 
co-sponsored by some of these same entities.  The Embassy is 
committed to selecting the most appropriate participants for the 
training, as well as obtaining the site, accommodations, meals, and 
translation services.  The Embassy will keep detailed record of how 
every dollar is spent. 
 
15. (U) Post appreciates the Department's assistance with this 
program. 
STRUBLE